Elian's Asylum Request Could Be Thwarted By Dad

The wobbly block letters spelling out E-L-I-A-N seem better suited for a proud parent's refrigerator door than a courthouse exhibit in a bitter fight over a 6-year-old boy.

But EliM-an GonzM-alez's printed name on an application for asylum -- his lawyers' only hope for keeping him out of Cuba -- came under attack on Monday in a long government brief that said the signature is meaningless when stacked against the wishes of his father, Juan Miguel.

"Even though EliM-an's `signature' appears on the asylum application, he lacked the capacity to raise an asylum claim on his own," Justice Department lawyer William J. Howard wrote. "The question then in determining whether EliM-an has filed an application for asylum is which of two adults speaks for EliM-an -- his father or a far more distant relative."

If his father speaks for him, can he withdraw the asylum application now that he has EliM-an at his side?

"I don't think there is anything to prevent EliM-an from withdrawing the petition for asylum," said Bernard Perlmutter, director of the Children and Youth Law Clinic at the University of Miami. "It is a long-held belief in our system of jurisprudence, backed by a large body of case law, that parents raise, educate and make life-altering decisions for children."

If the U.S. 11th Circuit Court of Appeals agrees after a May 11 hearing, EliM-an will likely be back in Cuba within weeks, lawyers said. And today, Juan Miguel's lawyer will take his first step to push EliM-an's Miami relatives out of the picture.

Gregory Craig is expected to try to have great-uncle LM-azaro GonzM-alez removed as EliM-an's "next friend," a move that would virtually wipe out the Miami family's hopes of representing the young boy, legal experts said.

LM-azaro GonzM-alez has filed three separate asylum requests, including one signed by EliM-an on Dec. 14. The applications claim, among other things, that EliM-an wants to remain in the United States and would suffer persecution if returned to Cuba.

If Juan Miguel GonzM-alez decides to withdraw his son's application, it could prove embarrassing for Immigration and Nationalization Service officials who have promised Juan Miguel would wait for the asylum question to be answered in court.

"The father has said he's going to wait out the appeals process, and we're taking him at his word," INS spokeswoman Karen Kraushaar said. "But, yes, it's conceivable that he could try to have EliM-an withdraw his asylum [request]."

Attorneys for EliM-an's Miami relatives said they have no intention of backing down, and said they expect the appeals court to allow EliM-an to apply for asylum. They will also fight any attempts by the government to have the case dismissed before the appeal is heard.

They admit their biggest legal obstacle would be an attempt by Juan Miguel to withdraw EliM-an's application.

"[It] would be the height of hypocrisy to take the boy after five months of saying that the boy cannot speak for himself, and give him a crayon and have him sign a statement saying `I don't want to apply for asylum,''' attorney JosM-i Garcia-Pedrosa said. "We would have to fight that."

Garcia-Pedrosa, repeating the fears of many Cuban-Americans in Miami who have fought to keep EliM-an, said he is afraid that Cuban President Fidel Castro will hurt the boy while his father does nothing to protect him. Those claims will be the crux of the asylum argument.

"We're trying to do what we can to avoid, or prevent what we know Castro is now trying to do: a reprogramming initiative which is practically a euphemism for brainwashing," Garcia-Pedrosa said. "We're trying to make sure that the effort does not commence on American soil, to try to prevent Cuban psychological operatives from doing anything to him here."

But those fears, no matter how well-founded, don't override a father's wishes, the Justice Department said.

"While we may not agree with Juan Miguel GonzM-alez's decision to live in Cuba, the freedoms which we stand for here in America require that we respect that decision," the lawyers wrote.

"Now that Juan is in the United States, many might wish he would choose to remain here with his wife and two sons. But those same freedoms require that we respect the choices the parents make for their young family."

John Holland can be reached at jholland@sun-sentinel.com or at 954-356-4531.